McCrillis v. Hawes , 38 Me. 566 ( 1854 )

Shepley, C. J.

— The settlement made with Lewis, one of the joint trespassers, does not appear to have been for the whole trespass but to have been expressly limited to a compensation for one half of the property taken. He does not appear to have been released from the whole trespass, but only from further liability after payment of the one half. The case of Gilpatrick v. Hunter, 24 Maine, 18, was an action of trespass for an injury to the person, incapable of exact estimate or of division, and the settlement appeared to have been made with one of several joint trespassers for the whole trespass.

This is an action of trover to recover for the value of cei’tain timber. The cases are very unlike, and the settlement for part of the property converted, will not prevent a recovery for the other part. Benbridge v. Day, 1 Salk. 218.

Another ground of defence presented appears to have been, that by paying for one half of the timber, Lewis and the defendant being partners, became owners of that half, and thereby tenants in common of the whole with the plaintiff, who cannot therefore maintain an action of trover against either of them.

The whole timber appears to have been sold, and to have passed from the possession of all the parties before any adjustment was made by Lewis with the plaintiff. The right of the plaintiff to maintain this action does not rest upon the demand for the timber made upon the defendant, but upon an appropriation of it to his own use by a sale of it before the action was commenced.

It was further contended, that the plaintiff could recover for one half only of thirty tons of timbei’.

The cause of action alleged in the declaration is not, as the argument supposes, for the conversion of thirty tons of timber only. It is for “ one hundred sticks of pine timber, to wit, thirty tons,” which came into the possession of the defendant. The property claimed' is the sticks of timber; the thirty tons is but. an estimate of its quantity. The plaintiff might recover for the value of the one hundred sticks of pine timber, or for so many of them as he could prove that he owned, deducting the value of one half, for which he had already received compensation.

The request for instruction “that the plaintiff, having proved a contract entered into with him, by Lewis and the defendant, for a settlement of the trespass, he could not recover in this form of action, but must resort to his action on the contract,” was properly refused. It assumed, that such a contract had been proved, and a compliance would have withdrawn from the consideration of the jury any testimony respecting it. The remarks made by the presiding Judge respecting such contract, appear to have been made from a reliance upon the statement made in the request and to have been immaterial, assuming its existence without any sufficient testimony.

The request for instructions “ that the plaintiff having declared for but thirty tons, he could recover, if any thing, only for one half of thirty tons,” was also properly refused.

This request appears to have been made, as well as the remarks of the presiding Judge respecting it, upon a misapprehension of the legal effect of the declaration. By a correction of that error the whole becomes immaterial.

Exceptions overruled.

Tenney, Howard and Hathaway, J. J., concurred.